The federal Crimes of Perjury, Subornation
of Perjury, and "Obstruction of Justice,"
and the Question of the Commission of such Crimes
by William J. Clinton in relation to the
United States District Court Proceedings
in Paula Jones v. Clinton,
as charged by the Independent Counsel, and by the
House of Representatives' Impeachment of Mr. Clinton,
reviewed with respect to the Constitution of the United States,
including a Review of the Definition of
"other high Crimes and Misdeameanors,"
as prescribed for Impeachment by
Article II, Section 4 of the Constitution.
Table of Contents
Part IV
Part IV a:
Blackstone's leading Maxim on Evidence
Definition of "high Crimes and Misdemeanors"
First,
as to Mal-administration,
and good
Behavior
Second, as
to the Definition
of "high
Crimes and Misdemeanors"
more specifically
An Act for
the Punishment of
certain
Crimes against the United States
(April 30, 1790)
Existence of "the common Law of the United States"?
A common
Misrepresentation of The Federalist
as to what
constitutes a high Crime and Misdemeanor
Regarding the Definition of
Perjury, by present federal
Statute
Chart of the Elements of Perjury
United States Criminal Code
18 U.S.C. §1621
Chart of the Elements of Perjury
as defined in English common
Law,
Blackstone's Commentaries
on the Laws of England
Rules 401 and 402
of the Federal Rules of Evidence
Rule 401. Definition of "Relevant Evidence"
Rule 402. Relevant Evidence
Generally Admissible;
Irrelevant Evidence Inadmissible.
Material Matter
Judge Wright's December 11, 1997 Order
giving her materiality Standard for
discoverable Information.
Trifling collateral Circumstance v. Material Matter.
And the lawful Oath
Perjury by § 1623 of Title 18
of the United States Code.
Perjury by 18 U.S.C. § 1623
"False declarations" before grand jury or
court
(18 U.S.C. § 1623)
The Criminal Offence of "Obstruction of Justice,"
as prescribed by present United States Statute,
is, like the present Statute Law on perjury,
defective and improper.
Tampering with a witness, victim, or an informant
(18 U.S.C. § 15121)
This part treats the constitutional law arising upon the federal criminal statutes on perjury, subornation of perjury, and "obstruction of justice," and the charges brought against President Clinton by the Independent Counsel and the House of Representatives that he committed such crimes in connection with the United States District Court proceeding of Paula Jones v. Clinton. Essentially, those charges are that Mr. Clinton, in his answers to "discovery" questions in the Paula Jones proceeding, did not tell the truth, or the whole truth, about his sexual relations with Monica Lewinsky (although the issue in the Paula Jones case was the fact alleged by the plaintiff Jones that defendant Clinton sexually harassed her, but denied by the defendant); and that Mr. Clinton acted or attempted to influence or procure perjury by M. Lewinsky in her affidavit in the proceeding and to influence other persons who would be accepted to be "potential witnesses" in the Paula Jones proceeding witnesses of the fact and circumstances of the sexual relations between Mr. Clinton and Miss Lewinsky.
Of course, the unconstitutionality of the Ethics in Government Act, the Independent Counsel provisions of that act, could not excuse the commission of criminal perjury and subornation of perjury in a civil suit proceeding. And furthermore, just because the office and officer of "Independent Counsel" established by the Ethics in Government Act are unconstitutional does not of itself necessarily mean that the investigation made by the Independent Counsel, and his "Deputy Independent Counsels," did not, or could not, uncover pertinent facts about a possible or alleged commission of criminal offences against public justice in connection with the Paula Jones judicial proceeding. However, whether the evidence which the Independent Counsel has obtained in his investigation could be regarded as legal evidence in a court of law is another matter, since surely, evidence obtained (and produced) illegally cannot be considered as legal evidence. I speak here of the transcripts of "sworn" grand jury testimony, DNA test reports, and other evidence produced by the Independent Counsel. As the office of Independent Counsel is unconstitutional, as demonstrated in the preceding parts of this Treatise, all of the proceedings conducted by that Independent Counsel, including his "grand jury investigation," and the testimony given therein, are illegal; hence, neither Mr. Clinton nor any one else could have committed the crime of perjury, or subornation of perjury, in the sworn testimony before that grand jury. That ought to be plain.
But the Paula Jones proceeding, and Mr. Clinton's conduct in, and related to, that proceeding, is another matter, of course. And so is the matter of Mr. Clinton having admittedly "misled" the public when he stated, as the Independent Counsel has taken notice of in his charges that "the President misled the American people and Congress regarding the truth of his relationship with Ms. Lewinsky,"
"I want to say one thing to the American people. I want you to listen to me. I'm going to say this again: I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time. Never. These allegations are false."(1)
The Independent Counsel has charged, as a ground for impeachment of the President, that:
"There is substantial and credible information [as grounds for impeachment] that President Clinton's actions since January 17, 1998, regarding his relationship with Monica Lewinsky have been inconsistent with the President's constitutional duty to faithfully execute the laws."(2)
Did the President by any private conduct in the White House involving a sexual affair with one or more other women while married, and by any acts to conceal the conduct and mislead the public and officials of the Government, abuse his office and, therefore, commit a "high Crime and Misdemeanor" prescribed in Article II, Section 4 of the Constitution, aside from the Paula Jones suit? According to the legal theory of Mr. Starr's charges, this public statement issued by Mr. Clinton is but one of many actions taken by him to influence "potential witnesses" in the Paula Jones proceeding, including persons who had not yet been named in a witness list but persons who the defendant, according to this theory, ought to know would likely be called as witnesses pertaining to his relationship with M. Lewinsky; and, therefore, he committed the crime of "obstruction of justice."
In the present Part IV it is first demonstrated that the crime of wilful and corrupt perjury, no matter the circumstance, is a high crime or high misdemeanor in the true, intended sense of Article II, Section 4 of the Constitution of the United States. Secondly, the present federal statute prescribing the crimes ("felonies") of perjury, subornation of perjury, and "obstruction of justice," are critically reviewed, and shown to be improper laws, hence, in violation of Article I, Section 8 of the Constitution, laws made not in pursuance of the Constitution, but laws which provide for arbitrary prosecutions and convictions, hence oppressive laws. The proof of this finding is vitally important for the security of all citizens gainst oppressive judicial procedures and prosecutions; the prosecution of Mr. Clinton by the Independent Counsel and the House of Representatives serving as a representative case for study. This case provides an occasion for us in the public to learn of such oppressive criminal laws and judicial procedures.
But before proceeding with the demonstration that wilful and corrupt perjury is a high crime and misdemeanor in the sense of Article II, Section 4 of the Constitution, and the review of the federal statutes on perjury and "obstruction of justice," the following preview of the subsequent parts of the present Treatise is given, as this preview will aid the review of the federal criminal laws on perjury and "obstruction of justice, the subsequent parts treating several other vital matters of the judicial proceedings of the Paula Jones suit that also affects the security of all citizens and other persons happening to be within the jurisdiction of the United States Government.
It is found, and is demonstrated in the following Parts V, VI, VII, and VIII of the present Treatise, that the judicial proceedings of the Paula Jones suit were conducted unconstitutionally, in regards to (1) the Supreme Court's order commanding and compelling Mr. Clinton to stand the Paula Jones suit, thus denying his plea to stay the suit until he leaves office; (2) the District Court rulings and orders directing and compelling Mr. Clinton to submit to examination as a party to the suit (written interrogatories and an oral deposition, taken January 17, 1997); and (3) the District Court rulings and orders, and their "legal" basis, directing and "compelling" Mr. Clinton to answer certain questions put to him in written interrogatories, and in his January 17th deposition by the plaintiff's attorneys, pertaining to certain extraneous matters in relation to the matter of fact in issue in the suit, the extraneous matter being the matter of Mr. Clinton's "sexual relations with other women," evidence of which, of course, could not demonstrate, make clear, or ascertain (make certain), or in other words, make evident, that defendant Clinton had sexually harassed plaintiff Jones as she alleged and which he denied, which was the fact in issue. A summary of these findings and a preview of the proof of them are given as follows:
1. The Supreme Court's order that required, and really compelled, Mr. Clinton to stand the Paula Jones suit was oppressive and illegal, having been founded on the Court's "doctrine" of presidential immunity from civil suits at the judicial discretion, a doctrine that violates the Constitution, and executed against Mr. Clinton on the basis of the Supreme Court's usurpation of the executive power of the Constitution, by the Court's sole appointment and control of a special marshal to execute the Court's orders. 2. The District Court's orders in Paula Jones that required Mr. Clinton to answer written interrogatories and to submit to a deposition were illegal, founded on unconstitutional rules of proceedings, namely, the Federal Rules of Civil Procedure, that permit, but unconstitutionally so, each party in a suit at law, for instance, the defendant, to be examined under oath. And 3. The District Court's orders that required Mr. Clinton and other "witnesses," as Ms. Lewinsky, to provide evidence (answers to questions) on the matter of "sexual relations" with "other women", matters not material to the fact in issue in the Paula Jones suit, were also illegal, being founded on unconstitutional rules of evidence, namely, the Federal Rules of Evidence. For legal evidence signifies that which makes clear, or evident, the truth of the very fact in issue. This ought to be plain; but it is thoroughly demonstrated in Part V.
1. The Supreme Court violated the Constitution by denying Mr. Clinton's reasonable motion to stay the Paula Jones suit until he leaves the office of President. The Supreme Court in its decision in Clinton v. Jones (117 S.Ct.Rep. 1636) did not support the Constitution, by their disregard of the Constitution's directive that the President "shall take Care that the Laws be faithfully executed," and by favoring instead the Court's unconstitutional doctrine of Presidential immunity from civil suits at the discretion of the Judiciary.
2. The proceeding of compulsory discovery against Mr. Clinton in the Paula Jones proceedings of the District Court, specifically, the deposition and written interrogatories to which Mr. Clinton was ordered to submit, were unconstitutional, and, therefore, he was illegally commanded, and even compelled, to submit to that deposition and the written interrogatories of the plaintiff's attorneys in that suit.
The basis for this finding is the finding that the Federal Rules of Civil Procedure, especially Nos. 2, 26, 30, 33, and 37, are unconstitutional; in that these rules have unconstitutionally abolished the distinction between cases in law and cases in equity which is expressly mandated by the Constitution, Article III, Section 2. More specifically, these rules prescribe only one form of action for civil suits in the Courts of the United States, called "civil action," thereby abolishing the distinctive action at law, and action in equity, and giving each of the parties of any "civil action" the "right" to compulsive discovery by the oath of the other party. Whereas, the certainly intended requirement, or the tenor, of the constitutional distinction between cases in law and cases in equity is that the compulsive examination of parties to a suit, as for instance, the defendant, and as distinguished from witnesses who are not parties to the suit, is prohibited in suits at law. Suits at law are to be the ordinary kind of actions in courts; as the courts of law are for the redressing of any civil injury whatsoever; and any injury is a violation of rights protected by law. The compulsive examination of parties may be permitted in suits in equity, however; but such suits are to be resorted to only in "rare and extraordinary" cases, when an adequate relief cannot be had by a suit at law; as by a request for an injunction, to prevent a civil injury, not to redress one. The reason for this distinctive rule barring the compulsive examination under oath of parties to a suit at law, was, as Blackstone in his Commentaries on the Laws of England gave it, "to avoid all temptations of perjury," while providing for just rules of evidence and proceedings in the courts of law, so as to determine the suit with justice; thereby to settle the dispute and quiet the contention, not to stir up more strife and contention, as by prosecutions for perjuries that were tempted and committed in a compulsive examination. (The compulsive examinations under oath of the parties to a suit obviously would tempt perjury, in order to support and sustain an allegation or a denial. Such is the wisdom of the bar.)
3. The District Court's order in the Paula Jones suit which directed Mr. Clinton to answer questions in the January 17, 1998 deposition and the earlier written interrogatories about any sexual relations with "other women" was illegal, being founded partly on the unconstitutional Federal Rules of Evidence, particularly Rule 401, which allows so-called "relevant evidence" to be admissible at trial, defined essentially as:
evidence of some fact which tends to make more probable the existence of any (other) fact (considered by the judge to be) of consequence in the determination, meaning, the termination, of the action.
This rule violates the tenor of the Constitution as to the intended meaning of the judicial power which the Constitution vests in the Courts of the United States with the express object "to establish Justice." The established definition of the judicial power when the Constitution was made is that which Blackstone laid down. By this definition, the judicial power is "to examine the truth of the fact" of the "injury" complained of in the suit, hence, the very fact in issue; not to examine other matters of fact, as matters about Mr. Clinton's "sexual relations with other women" in the Paula Jones proceeding. This intended meaning of the judicial power is further defined by the definition of admissible evidence, called legal evidence, which was further intended by the People who ordained and established the Constitution, namely, the "leading maxim" on legal evidence as expounded by Blackstone, to wit:
"And, first, evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other; and no evidence ought to be admitted to any other point." (III, Ch. 23, p. 367)
Rule 401 of the Federal Rules of Evidence, however, is fundamentally different than the maxim set down in Blackstone, and amounts to a (unconstitutional) license of complete liberality at the discretion of the judge (and ultimately the discretion of the Supreme Court), as to what constitutes "relevant" evidence, whether sought in discovery, or admissible at trial; and, therefore, is plainly contrary to the tenor of the Constitution and the demonstrable definition of the judicial power that the People have delegated to the Courts of the United States by our Constitution. Neither the Supreme Court, nor the Congress, are at liberty, nor have they been vested by the Constitution with the power, to define or re-define the judicial power. The Courts, by the Constitution, are not vested with a power to examine extraneous matters of fact, as in the Paula Jones case, where evidence about any sexual relations with "other women" cannot demonstrate, make clear, or ascertain, that is, make evident, that plaintiff Jones was "sexually harassed" by defendant Clinton as alleged in her complaint. The Courts of the United States are only vested with the judicial power as truly and demonstrably intended by the People who ordained and established the Constitution.
The District Court orders directing, and even "compelling," Mr. Clinton to answer questions about "sexual relations with other women" were also founded on Rule 26(a) and (b) of the Federal Rules of Civil Procedure, which grant each party of a civil suit the right to "obtain discovery regarding any matter which is relevant to the subject matter involved in the pending action," also called "discoverable information relevant to disputed facts alleged." These rules give the judges of the Courts of the United States a discretion power to decide on what matters a party or a "witness" may be interrogated on, a rule that allows matters to be subjects of interrogation (for instance, in an oral deposition) which need not even be ruled as "relevant" in the sense of "relevant evidence" that can be admissible at trial; that is, the "information sought" need not be "admissible evidence" but only matters that are "reasonably calculated" to lead to the discovery of "admissible evidence." This rule of the Federal Rules of Civil Procedure is also unconstitutional, since no judicial proceeding could be legal that has as its object the examination (questioning) of persons on matters that are not material to the issue of the case questioning to obtain evidence to any other point than the very fact in issue.
Moreover, the entire Section V of the Federal Rules of Civil Procedure on "Deposition and Discovery" is unconstitutional in regards to suits at law (the ordinary type of suit, as distinguished from suits in equity, which is to be the extraordinary and rare suit); for the tenor of the Constitution, the meaning of the judicial power vested in the Courts of the United States, the trial by jury, and the distinction between cases in law and cases in equity, as prescribed in Article III, Section 2 of the Constitution, are such that the action of the discovery, properly speaking, is not performed by a party (to "discover" evidence to be wrung out of the other party privately, as in a deposition), but is to be performed by the jury. The plaintiff is not to be encouraged to apply to the Courts for a redress of injury without having his proofs before hand known to him. The courts of justice are not to be a means for a plotting person to make investigations and explorations to search for and discover any information or facts that may prove or substantiate his allegation, or worse, information that may only tend to make his allegations more credible. I should apply to the courts of justice with a suit at law when I am positive that a wrong has been done to me, and I know for certain of the existence of the evidence to prove it. The trial is to present that evidence before the jury, with the right to compel witnesses to appear and give such evidence by examination. The discovery that occurs in this proceeding thus occurs in the trial, the discovery of the truth. Consequently, the method of examining witnesses by taking their deposition in suits at law, as permitted by the Federal Rules of Civil Procedure, is unconstitutional. On reflection it is plainly seen as an oppressive proceeding: to compel a person under the guise of an "impartial" judicial proceeding to stand a suit and submit to examination, and to compel his associates, friends, and family members to submit to examination, on any matter which the judge determines to permit (a discretion power) is plainly oppressive, and plainly tends to tempt perjury in matters of potential embarrassment with severe criminal penalties attached, to the ruin of people. There is absolutely no proceeding like that of "discovery" as prescribed in the Federal Rules of Civil Procedure for suits at law to be found any where in the four volume treatise Commentaries on the Laws of England by William Blackstone, the primary law book which was used, along with Vattel's The Law of Nations, to write the Constitution of the United States.
Furthermore, the Federal Rules of Evidence, and the Federal Rules of Procedure, which are laws, and laws of the utmost gravity, were made by the Supreme Court (see 28 U.S.C. § 2072, 2074) in further violation of the Constitution, because they amount to usurpations of legislative power. The Constitution mandates that the legislative powers of the Constitution shall be vested in the Congress, and therefore in the Congress only, not to be usurped, transferred, or given over to the Supreme Court, as the Congress have acted by statutes which authorized the Supreme Court to make the rules of evidence and rules of proceeding in the Courts of the United States.
More still, even had the Congress by laws made the present Federal Rules of Evidence, and the present Federal Rules of Civil Procedure, the laws would still not be proper, as these rules do not conform to the demonstrable tenor of the Constitution, as to the intended meaning of the judicial power (Article III), suits at common law and trial by jury (Amendment VII), and the distinction between Cases in Law and Equity (Article III, Section 2). For the Congress is granted the legislative powers of Article I, Section 8 with the qualification that the laws which they shall have power to make for carrying into execution the judicial power, shall be necessary and proper. The word shall is command language that establishes that Congress's law-making power is not a discretionary power. Therefore, the laws prescribing the rules of evidence and the rules of procedure which the Congress is empowered to make, in order to carry into execution the judicial power vested by the Constitution in the Courts of the United States, must be proper and in pursuance of the Constitution (Article VI); and therefore, the Congress would be duty bound to make the laws on evidence and judicial procedure to conform to the tenor of the Constitution the meaning of the judicial power, trial by jury, cases in law and equity, and justice, as the people who ordained and established the Constitution intended.
Therefore, Mr. Clinton was illegally deposed, and illegally compelled to answer questions about "other women" in the Paula Jones suit; and, consequently, there can be no crime of committing wilful and corrupt perjury, and subornation of perjury, on account of Mr. Clinton's deposition testimony and answers to the written interrogatories of the Paula Jones suit, and any conversations he may have had with Miss Lewinsky about the Paula Jones suit.
Moreover, as Rule 401 of the Federal Rules of Evidence is unconstitutional, the plaintiff in the Paula Jones suit, and her attorneys, had no legal right to subpoena and question witnesses, as Miss Lewinsky, on the "pattern of conduct" theory about sexual relations with "other women" again, extraneous matters in relations to the matter of fact in issue in the suit. Therefore, no crime of subornation of perjury and "obstruction of justice," or "witness tampering," in connection with such witnesses of extraneous matters could have been committed by the defendant Clinton. The charges of such wrong doing, levelled by the Independent Counsel and the House of Representatives, pertain to alleged influencing of witnesses about the matter of Mr. Clinton's sexual relations with Miss Lewinsky.
The elaborated proof of the foregoing findings is given in the following Parts of the present Treatise: Part V, Part VI, Part VII, and Part VIII. But before proceeding to those parts, the matter of the true definition of "other high Crimes and Misdemeanors" in respect to perjury is treated, the true definition being that which is according to the tenor of the Constitution, that is, the demonstrable intentions of the People who made and established the Constitution, as determined with the aid of Blackstone's Commentaries on the Laws of England. It is found that wilful and corrupt perjury in a legal judicial proceeding is a high crime and misdemeanor in the true sense of Article II, Section 4 of the Constitution of the United States; and indeed, it is a higher crime than the crime of Bribery that is specified in Article II, Section 4. However, the present federal laws on perjury, which acted to supersede the original 1790 law, is defective so as to admit of arbitrary and oppressive application, hence an improper law.
The remainder of the present Part IV then treats (1) the matter of definition of high crimes and misdemeanors in the sense of Article II, Section 4 of the Constitution, and (2) the matter of the present federal criminal laws on perjury, subornation of perjury, and "obstruction of justice."
Definition of "high Crimes and Misdemeanors"
Article II, Section 4 of the Constitution of the United States declares:
Section 4. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
A variety of definitions of the "high Crimes and Misdemeanors," or "impeachable offenses," as some call it, have been asserted on television by former federal prosecutors and political commentators, as well as by professors of constitutional law, members of Congress, and former Presidents, all of which definitions are found to be groundless and merely speculative. Examples of such definitions are:
1. "Abuse of power;"
2. What ever misconduct which the Senate decides to convict on, as former President Gerald Ford has stated; thereby allowing the Senate to convict on indecent behavior, or a President misleading the public and his officers;
3. A "crime against the state," as a military-like coup, and therefore corrupt perjury, for instance, is not such a high crime.
4. A criminal perjury, but of a "serious" kind, not lying about "sex."
Generally, it is said, and has been said in earlier impeachment debates, that the Constitution gives us no help in determining the meaning of "high Crimes and Misdemeanors," and has left us to argue interminably over its meaning.
This author finds that all
such opinions and definitions are wrong. Again, only by studying Blackstone's
Commentaries on the Laws of England, Book IV on "Public Wrongs,"
can we determine correctly the true meaning of "high Crimes and Misdemeanors"
which the Federal Convention certainly intended as grounds for impeachment
and removal from office.
First,
as to Mal-administration,
and good Behavior.
The meaning of the expression "high crimes and misdemeanors" is determinable upon consulting Blackstone's Commentaries on the Laws of England, and the Madison's notes, given in The Records of the Federal Convention of 1787 (compiled by M. Farrand, Yale Univ. Press). Blackstone's Commentaries is the key: particularly, Book IV, on "Public Wrongs," which defines crimes and misdemeanors, and examines in details the full range of the many species of offences: from high Treason; Misprisions and Contempt; Offences against Public Justice, - against Public Trade, - against Public Health, and the Public Police and Oeconomy; Homicide; Offences against the Persons of Individuals, - against the Habitations of Individuals, and - against Private Property.
Firstly, crimes and misdemeanors properly speaking are synonymous terms, said Blackstone. They are offenses to be punished. The expression in question turns on the meaning "high." Blackstone notes that there are crimes such that the offense in itself does no injury to anyone in the civil society, but is made criminal by the statute which declares the crime, as by laws against poaching, or exporting wool, said Blackstone, hence, laws for the convenience or better welfare of the society (IV, Ch. 4, p. 42). Still, the punishment for exporting wool, the offence of Owling, was severe: imprisonment for one year, and a felony for the second offence (IV, Ch. 12, "Offences against Public Trade." And a felony was defined by Blackstone to mean punishment by death; though a felony properly, said he, means forfeiture of estate. Therefore, Owling would certainly be a high crime. The crime of poaching, violation of game laws, have punishments "chiefly pecuniary" (IV, Ch. 13) But where the offense has consequences injurious to the civil society, then such crimes are certainly more serious, and such offences are marked out in Blackstone's treatise. These are certainly criteria for what is or is not a "high crime and misdemeanor." Included under the head of offences having consequences injurious to civil society is certainly the crime of perjury and subornation of perjury, according to the Blackstone's Commentaries, as will be demonstrated below.
One of the crimes that was surely regarded as a high crime is that of misprision, one of which is mal-administration. Other misprisions are "such contempt of the executive magistrate [the king] as demonstrate themselves by some arrogant and undutiful behaviour." The crime of mal-administration was proposed in the federal convention of 1787 that ordained the Constitution to be added to the crimes of treason and bribery as a third impeachable offense; but this proposal was withdrawn by its proponent (Col. Mason of Virginia) and substituted with "other high crimes and misdemeanors,"(3) after Madison argued that maladministration as an impeachable offense (left without a definition) would be "equivalent to a tenure during the pleasure of the Senate." The Mason proposal as to mal-administration is important to review meticulously.
Near the end of the convention, on September 4, a draft of the impeachment clause which was reported by a committee read:
"He [the President] shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery, and in case of his removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed." (Farrand, Vol. 2, p. 499)
On September 8, the clause on impeachment as reported was taken up for debate. According to Madison's notes, given in Farrand's Records, the following transpired:
"The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up.
Col Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He moved to add after "bribery" , "or mal-administration". Mr. Gerry seconded him
Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr Govr Morris, it will not be put in force & can do no harm An election of every four years will prevent maladministration.
Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemeanors" <agst. the State"> ...
In the amendment of Col. Mason just agreed to, the word "State" after the words misdemeanors against" was struck out, and the words "United States" inserted, <unanimously> in order to remove ambiguity." (Records, Farrand, Vol. 2, p. 550-551)
This part of the deliberations of the federal convention, as given in Madison's notes and verified by the journal of the convention, can be erroneously interpreted, if taken to mean that the offence mal-administration was to be excluded from possible impeachable offences. In fact, quite the contrary is true. The offence mal-administration is only one of the particular species of "high offences," and therefore, "high crimes and misdemeanors," that is included among the enumeration of crimes and misdemeanors given in Blackstone's Commentaries on the Laws of England, and but this one specifically under the denomination of "Misprisions and Contempt, affecting the King and Government," defined as "offences, more immediately against the king and government. There are many other species of "high crimes and misdemeanors" that come other several other classes of denomination, as "Offences" against "Public Justice;" against "Public Peace;" against "Public Trade;" against "the Public Health, the Public Police or Oeconomy;" and offences of "Homicide;" offence against "the Persons of Individuals," &c. So, Col. Mason's proposal, which carried, was really an great expansion of the field of impeachable offences.
As to class of offences Misprisions and Contempt, said Blackstone:
"Misprisions (a term derived from the old French, mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offences as are under the degree of capital [penalty of death], but nearly bordering thereon: and it is said, that a misprision is contained in every treason and felony whatsoever; ... the king might remit a prosecution for treason, and cause the delinquent to be censured ... merely for a high misdemeanor ... Misprisions are generally divided into two sorts; negative, which consist in the concealment of something which ought to be revealed; and positive, which consist in the commission of something which ought not to be done.
Of the first sort is called misprision of treason. Of the second sort Blackstone wrote:
II. Misprisions which are merely positive, are generally denominated contempt or high misdemeanors; of which
1. The first and principal is the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment: wherein such penalties, short of death, are inflicted, as to the wisdom of the house of peers shall seem proper; consisting usually of banishment,imprisonment, fines, or perpetual disability. Hitherto also may be referred the offence of imbezzling the public money, ... Other misprisions are in general, such contempt of the executive magistrate, as demonstrate themselves by some arrogant and undutiful behaviour towards the king and government. These are
2. Contempt against the king's prerogative. As, by refusing to assist him for the good of the public; either in his councils, by advice, if called upon; or in his wars, by personal service for defence of the realm, against a rebellion or invasion. Under which class may be ranked the neglecting to join the posse comitatus, or power of the county,... which is a duty incumbent upon all that are fifteen years of age, under the degree of nobility, and able to travel. Contempt against the prerogative may also be, ... by disobeying the king's lawful commands; whether by writs issuing out of his courts of justice, ..." (IV, Ch. 9, pp. 119-122)
Therefore, it is clear from Blackstone's Commentaries that by substituting mal-administration with "other high crimes and misdemeanors,' which,by the way, denominates bribery as a high crime and misdemeanor, Mason did not exclude mal-administration as a possible high Crimes and Misdemeanors, but quite to the contrary, his substitute expression "and other high crimes and misdemeanors," vastly broadened the field of impeachable offences; though the Congress would have to prescribe by law the high crimes and misdemeanors. Therefore, Congress could prescribe mal-administration as one such high offence, should they resolve to do so, as that was a common law offence in England, according to Blackstone. The point of George Mason's proposition to include expressly the offence maladministration was to include "attempts to subvert the Constitution," as one impeachable offence. Such an offence could be defined, for instance, as acts of a President to make war unconstitutionally a usurpation of power, hence, a subversion of the Constitution. But as maladministration has no specific definition in Blackstone's enumeration, and therefore, can include anything that is considered wrong or bad in the administration of public affairs, such a crime would amount to a discretion power vested the House of Representatives, then in the Senate, as Madison indicated. Anyway, such a crime has not been enacted into law by the Congress (that this Author knows of). In this regard it should be mentioned that the high crime and misdemeanor of bribery is not defined in the Constitution, thus leaving it to the Congress to define that crime. Blackstone confined the crime to a judge of court of justice taking money or other undue rewards to influence his office.
It is also important to emphasize that Madison's notes quoted above indicate that the Convention did not want the Senate to have the discretion power to define what constitutes an impeachable offence, by the offense maladministration, as such power would be "equivalent to a tenure at the pleasure of the Senate." This further supports the conclusion that impeachable offenses under the Constitution must be high crimes and misdemeanors prescribed by law, or a common law crime of the States, but still a high crime and misdemeanor.
A further insight into what constitutes "high crimes and misdemeanors" by Article II, Section 4 of the Constitution is provided by Article III, Section 1, which directs that the a Judges of the Courts of the United States "shall hold their Offices during good Behaviour." It is often asked, what does this good Behaviour standard mean? But the answer is readily and perfectly obtained, by consulting Blackstone's Commentaries on the Laws of England. The chapter in Blackstone's Commentaries on preventing crimes (Chapter 18) makes it clear that "good behavior" means no criminal behavior, hence, good behavior. The criteria "removable at pleasure" is for causes or reasons less than criminal behavior.
So, it can be concluded that "high crimes and misdemeanors" means not any act or behavior which the Senate wishes to convict on, but such as are truly high "crimes and misdemeanors" as those terms are defined by Blackstone, and more specifically, such specific species of crimes and misdemeanors which the Constitution leaves to the Congress to define by law, in the case of federal crimes, and of course, the criminal laws of the several States; where a high crimes and misdemeanors is evident from the nature of the crime and its prescribed penalty. (A trial court ought not to make the criminal laws. There is also the prohibition against ex post facto laws, the making a crime for an act that was not criminal at the time of the commission of the act.)
Though the House of Representatives is vested by the Constitution with the sole power of impeachment, and the Senate is vested with the sole power to try impeachments, the members of the House of Representatives and Senate are still bound by oath to support the Constitution, or they ought to be so bound; and, therefore, they ought to determine honestly what the makers of the Constitution intended by the expression "high crimes and misdemeanors," as well as what means impeachment, and as well as the clause that vests the House of Representatives the sole power of impeachment, &c.
Second,
as to the Definition
of "high Crimes and Misdemeanors"
more specifically.
First of all, a high Crime and Misdemeanor, under the United States Constitution, has to be an offense defined or prescribed by law; and the punishment must be also prescribed in that law; although the law may prescribe some range of discretion to be exercise by the court judge in deciding on the precise quantity of punishment in a particular case. In the case of federal crimes, the criminal law must be a statute made by Congress. For crimes under a State law, it can be the criminal law can be part of the common law of the State, as well as statute law. There is no common law (unwritten law) of the United States. The Constitution does not expressly provide for such law. It is significant that the "Independent Counsel," Mr. Starr, in his testimony before the Judiciary Committee of the House of Representatives on November 19, 1998, asserted the "common law of the Congress" of the United States, and in an appendix to his Referral report on "Legal Reference," he asserts the existence of "common law" for the United States. Such is a device to usurp powers not delegated to the United States by the Constitution.(4) For only the Congress is granted the power to make Laws (Art. I, Sec. 1 and Sec. 8), not the House of Representatives when determining on an impeachment; not the Senate when trying an impeachment; nor the judicial courts in "hearing and determining" an indictment. And, Congress can make only such laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States. Said Blackstone,
"A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. (IV, p. 5)
Therefore, there must be a law prescribing (defining) the crime, hence, under the Constitution of the United States, a law enacted by the Congress. Unlike the laws of England under the British Constitution, as laid down in Blackstone's Commentaries on the Laws of England, the laws of the United States under the Constitution of the United States are not to consist in part of customs or any prerogative (discretion) powers of the Government. Remember too, Amendment V of the Constitution directs that "no person shall be deprived of life, liberty, or property, without due process of law." So, again, there must be a law which define the crime for which a person may be charged, tried, and convicted, and punished.
Secondly, the President, nor any other officer of the United States (nor any other person), cannot, under the Constitution, be impeached (or indicted) for behavior which was not specifically prohibited by law and made a criminal offence before the commission of the act. The Constitution declares that no ex post facto law shall be passed (Article I, Section 9). If members of Congress be of the mind that certain behavior, such as adultery committed by a President and other high officers of the United States, is not proper and want to make it a criminal offense, to deter such behavior by the leading officers of the Government, they can always make a law declaring such behavior as a high criminal offense with punishment extending to the removal from office should a President be found guilty of such offence by the Senate.
Thirdly, as to what crimes and misdemeanors constituted a high crime and misdemeanor, Blackstone, in the first chapter, "Of the Nature of Crimes, and their Punishment" in Book IV on "Public Wrongs" of his Commentaries provides us with the clear answer. To determine whether or not a crime or misdemeanor is a high crime or a high misdemeanor, we begin by considering Blackstone's discussion of the "scale" of crimes: of the "ranking" of crimes; of the "rating" of crimes; and of the "quantity" of punishment, all terms used by Blackstone when discussing the level of a crime throughout Book IV. Thus, for instance, according to Blackstone's Commentaries (Book IV), Treason is the "highest" crime; and there are then "inferior crimes." The ranking of crimes depends on the extent of the injury wrought by the offense, which more or less determines the quantity of punishment.
Thus, high crimes and petty crimes are assessed by these rating factors. Capital crimes, defined as "forfeiture of life," and felonies, defined as "forfeiture of estate," are obviously high crimes. Misprisions are "high misdemeanors," which includes mal-administration, and "arrogant and undutiful behavior toward the king and government," as contempt of the king's prerogative: as disobeying the king's lawful commands, a "high misprision," said Blackstone. That there are high crimes and misdemeanors and petty offenses is clear from Blackstone's Chapter 23, where he mentions that "petty offenses" are presented in the lower courts of sheriff's tourn and court-leet. In Chapter 19 on the courts of criminal jurisdiction, Blackstone indicates the business of the courts tourn and leet have declined so as to punish all trivial misdemeanors, as eaves dropping, warfs, and irregularities in the public common.
Blackstone enumerates twenty-two species of offenses against "public justice" in Chapter 10, "Of Offenses against Public Justice." His introduction of this chapter states:
First then, of offences against public justice: some of which are felonious, whose punishment may extend to death; others only misdemeanors. I shall begin with those that are most penal, and descend gradually to such as are of less malignity."
The first species of his enumeration, and therefore, the highest of the offense of this class, is that of embezzling, or vacating records, or falsifying certain other proceedings in a court of judicature, a felonious offence against public justice.
Continuing down the enumeration, the second species of offense is the offense of a gaoler inducing or exciting a prisoner to accuse and turn evidence against some other person. The third is obstructing the execution of lawful process. The fourth through the seventh relates to the escapes from prison, and rescue, and other assistance. The eighth through the tenth pertains to stolen goods and theft. The eleventh is barretry, the offence of exciting and stirring up suits and quarrels. The twelfth is maintenance "the officious intermeddling in a suit, by maintaining or assisting either party with money or otherwise," which "keeps alive strife and contention." The thirteenth is champerty, "being a bargain with a plaintiff or defendant (by an attorney, say, or some other champertor) to divide the matter sued for between them, if they prevail at law, whereupon the champertor (attorney) is to carry on the party's suit at his own expense." Said Blackstone of champertors: "These pests of civil society, that are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men's quarrels, even at the hazard of their own fortunes, ..." The 14th and 15th species pertains to malicious criminal prosecutions and conspiracies of such.
The 16th in the enumerations of species of offences against public justice, is "wilful and corrupt perjury," and subornation of perjury, which is the "offence of procuring another to take such a false oath, as constitutes perjury in the principal." The definition of wilful and corrupt perjury will be discussed in the next section. For the moment, attention is paid to the rank of this crime, as chiefly determined by the degree of punishment annexed to the offense. Said Blackstone of the punishment for perjury:
"Perjury itself is thereby punished with six months imprisonment, perpetual infamy, and a fine of 20 l. or to have both ears nailed to the pillory. But the prosecution is usually carried on for the offence at common law; especially, as to the penalties before inflicted, the statute 2 Geo. II. c.25 superadds a power, for the court to order the offender to be sent to the house of correction for seven years, ..." (IV, ch. 10, p. 137)
The offense of perjury is then followed in the "descending" direction by bribery, the 17th species of Blackstone's enumeration. The 18th species is embracery, or attempting to influence a jury corruptly; the 19th is a false verdict by a jury; and the 20th is negligence of public officers, entrusted with the administration of justice. The 21st species of offences against public justice is that of oppression, or the tyrannical partiality of judges, justices, and other magistrates, in the administration of their office, a crime of "deep malignity." And lastly, the 22nd species is extortion, the unlawful taking of money or thing of value from any man by any officer by the colour of his office. The penalty for extortion is fine and imprisonment, and "sometimes forfeiture of office." Thus, we find that the lowest crime and misdemeanor in Blackstone's ordered enumeration of offenses against the public justice ("descend"-ing order), namely, extortion, would certainly be a high Crime and Misdemeanor by the Constitution, since removal from office is forfeiture of office.
(Incidentally, should not the independent counsel be charged with a crime of oppression, by granting immunity from prosecution to persons in exchange for accusatory testimony against another person, thus exhibiting a tyrannical partiality?)
The crime of wilful and corrupt perjury in Blackstone's enumeration ranks higher than bribery, and since bribery is among the specification of impeachable crimes, or high Crimes and Misdemeanors, given in Article II, Section 4 of the Constitution of the United States, then certainly corrupt perjury is a "high crime and high misdemeanor."
There are several other classes of offenses treated by Blackstone, as offenses against (a) the public peace, (b) the public trade, and (c) the public health, and the public Police or Economy. These, together with the offenses against the public justice, are grouped by Blackstone under the denomination as crimes affecting "the common-wealth, or public polity," as distinguished from those offenses "which are peculiarly pointed against the lives and security of private subjects," as homicide, offenses against the person of individuals, as mayhem, forcible abduction, rape, taking away any woman child unmarried, all of which, Blackstone, are felonious offence (forfeiture of estate), as such offenses more immediately against the personal security of the subject. Also, Blackstone lists "inferior offenses, or misdemeanors" under this head, as assaults, batteries, wounding, false imprisonment, and kidnapping. But surely kidnapping, which, assumedly, is a crime in all states of the United States, would be a high crime on which to convict an officer of the Government. Some crimes or misdemeanors have light penalties, as exercising a trade without an apprentice, or the like, as poaching, and fishing in violation of a game law. But surely, a crime punishable by imprisonment is a high crime.
Therefore, upon study of Blackstone and comparing that treatise with our Constitution, a high Crime and Misdemeanor must be a crime or misdemeanor defined in the statutes of the State where the crime may have been committed, and in the statutes of the United States, if the federal criminal laws were violated. Whether the crime or misdemeanor is a high crime or misdemeanor is to be judged by the evident rank of a crime found by the law that defines it, as in the severity of punishment prescribed. It appears that the Constitution has left to the preparatory judgement of the House of Representatives, and the final judgement of the Senate, as to whether a particular offense committed by an officer of the United States is a high Crime and Misdemeanor, though the Senate's judgment ought not to be arbitrary or discretionary, but an honest assessment of the crime.
One wonders whether the legislatures of the States and federal Government have neglected to make laws prescribing offenses that ought to have been made criminal by law (statute), in order to protect misbehavior on the part of legislators and officers of the Government.
Is there a federal statute prohibiting adultery by the President of the United States, or even having sexual affairs with another woman when married? I doubt if there is such a law. If not, no crime or misdemeanor has been committed by Mr. Clinton in that regard. Blackstone mentioned that there are offenses against the public polity pertaining to departures from good manners and descent behavior. The Congress need only prescribe such specific offenses as crimes or misdemeanors, and the quantity of punishment, if they want the officers of the United States, especially the President, to be held to certain standards of personal behavior. But without such laws, no crime can be committed as to such behavior.
What about the case of a President making war unconstitutionally, and therefore, killing human creatures unlawfully? Could he be presently impeached for such behavior? I should think so: For the original law of the Congress for prescribing crimes made it a crime of murder,
An
Act for the Punishment of
certain Crimes against
the United States
(April 30, 1790)
"Sec. 3. And be it enacted, That if any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons on being thereof convicted shall suffer death."
(The present federal criminal law against murder is not restricted to places under the sole and exclusive jurisdiction of the United States. See 18 U.S.C. § 1111.) Should a President who makes war unconstitutionally, resulting in the killing of human beings and exposing the people of the United States to dangers, not be prosecuted for the crime of murder under that statute, or under the existing law?
The Congress has generally neglected their plain constitutional duty to make the necessary and proper laws for deterring the President and other officers of the United States from acting in violation of the Constitution, especially those violations of the Constitution that involve killing human creatures and destructions, as war-making, or prosecuting and imprisoning persons for crimes, or making judicial rulings that harm individuals, or other actions or activities that cause harm to persons, and other such harmful consequences. Blackstone's Commentaries on the Laws of England describes criminal offenses denominated as misprisions, or contempt for authority. There ought to be such laws, in support of the Constitution, to deter officers of the United States, including the President, from violating the Constitution. That ought to be plain.
Existence of "the common Law of the United States"?
The Independent Counsel, Mr. Starr, in his November 19th testimony before the House Judiciary Committee, asserted the existence of a body of law call, which he called "the common law of the Congress of the United States," in answer to a question whether perjury is a "high crime and misdemeanor" in the sense employed in Article II, Section 4 of the Constitution, and, therefore, an impeachable offense. In his opening statement of his testimony, Mr. Starr cited "relevant precedents" as that along with the "text" and the "history" of the Constitution that make clear the "law of impeachment" pertaining to the crimes of "obstruction of justice in its various forms;" thus implying that the previous impeachments by the House of Representatives, or even merely the articles of impeachment reported by a committee of the House of Representatives, makes the common law of the United States with respect to the law of impeachment. This doctrine so asserted can be extended to include any precedent of conviction, even mere indictments, for offences of so-called "obstruction of justice" makes or establishes part of the common law of the United States with respect to the crimes and misdemeanors.
As the expression common law is equated with the unwritten law, in Blackstone's Commentaries on the Laws of England; since it has come to be a more or less widely held doctrine that common law "is a body of law that develops and derives through judicial decision," and that there exists a "federal common law," defined as "a body of decisional law developed [hence, made] by the federal courts" (See Black's Law Dictionary," 6th Edition, West Group publisher, pages 276 and 610.), thus comprising something call "American jurisprudence;" and since Mr. Starr's notion of precedents for the "impeachment law" probably arises from the judicial nature of the House of Representatives when sitting as a grand inquest of the nation in respect to the sole power of impeachment vested in it, Mr. Starr's assertion of "the common law of the Congress of the United States" is a bold assertion in effect that the United States Government, whether it be the Congress, or the Judicial Courts, makes law by its actions: that the decision and opinion of the Supreme Court amounts to the common law of the Courts, of the United States, hence, the common law of the United States. Mr. Starr then carries this doctrine further to define and establish as law, that is, the common law, species of crimes denominated "obstruction of justice," by means of indictments of a grand jury, or the convictions by a petit jury, for such species of crimes in the Courts of the United States, not by a statute of the Congress prescribing certain crimes. Such definitions of certain crimes of obstruction of justice as developed by judicial decisions are then used to constitute additional potential grounds for impeachment as a "high crime and misdemeanor."
This doctrine of "the common law of the United States" is unconstitutional; and is but another trick or sophism to acquire for the United States Government or the Supreme Court of the United States, prerogative powers (sometimes called inherent powers), powers not expressly granted by the Constitution, including powers to make federal criminal law not by statute; as the Independent Counsel's assertion in effect that presidential actions which are "inconsistent with the President's duty to faithfully execute the laws" are grounds for impeachment, hence, a "high crime and misdemeanor."
Let it be clear: The Constitution does not declare that anything called "common law," or anything which fits the definition of common law just mentioned, shall be part of the law of the United States, except the specific case of the common law in respect to the rules for re-examination of a fact in regard to the trial by jury in suits at common law (Amendment VII of the Constitution); nor does it declare that the Supreme Court of the United States makes law by their judicial decisions. It is clear from Blackstone's Commentaries that the legislative power makes the laws and the judicial courts determines, not makes or develops, the law arising upon the fact in issue of a case: that the judges of the courts are to find out and ascertain what is the law, upon study, investigation, and deliberation. Blackstone defined civil law as follows:
"a rule of civil conduct prescribed the supreme power in a state, commanding what is right and prohibiting what is wrong." (I, Introd., §2)
Blackstone emphasizes that the rule must be prescribed for it to be a law, that is, the public must be notified in writing, that henceforth in the future the conduct as defined in the prescribed rule shall be right or wrong, as the law commands; hence, pre-written, or prescribed. Consistently, the United States Constitution prohibits ex post facto laws, that is, laws declaring as crimes acts performed previous to the enactment of the law (Article I, Section 9). However, in England, according to Blackstone's Commentaries, there are "unwritten laws" which are denominated "common law," to mean the laws binding everyone in common (no exceptions), and which have always been in force and universal usage from time immemorial, but which are not written down, that is, not to be found in the books of statutes enacted by the legislature. These unwritten laws, or the common law, said Blackstone, are to be found, or rather the "evidence" of these laws are to be found, in the reports judicial decision of the courts of justice and the treatises of the learned sages, as Sir Edward Coke, his Institutes, and Mathew Hale (Chief Justice of the King's Bench), his treatise, History of Pleas of the Crown. Blackstone said that the common law is by universal tradition and long practice "supposed to have been originally prescribed and publicly notified, but because of the vast span of time, the official notice of the law, or statute or proclamation, has gotten lost, and therefore requiring the reliance on the reports of the judicial decision and treatise of the learned sages for the evidence of the common law.
Statutes, or standing laws (from statue), said Blackstone, are only declarative of what has been the common law, or remedial of some defect in the common law, said Blackstone. It results that since only the Parliament is vested with the legislative power, the courts of judicature in England, say at the time of the publication of Blackstone's treatise, were bound to the common law and statutes (the statutes taking precedent). The judges of the courts had no power to make laws. There were not allowed to depart from the common law, or "develop" it, as the common law are laws already in being as having already been put into effect.
For the United States the historical foundation of the laws is not a factor in the establishment of the laws. For the United States Government has not existed from time immemorial, but was established with the establishment of the Constitution of the United States, at which point in time there existed no federal laws whatsoever but the Constitution of the United States and the treaties that had already been made under "the Authority of the United States" that is, treaties that were made by the authority of the Congress of the United States under the Articles of Confederation, according to Article VI of the United States Constitution, to wit:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Also, Article I, Section 8 of the Constitution declares and directs:
"The Congress shall have Power To law and collect Taxes, ... To regulate Commerce, ... To raise and support Armies [&c.] ... And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
So, the laws of the United States are only those that shall be made in pursuance of the Constitution, hence the laws made after the Constitution went into effect; hence laws which can only be made by the Congress, as only the Congress is vested with the legislative powers (Article I, Section 1), and more specifically the power to makes all laws which shall be necessary and proper for carrying into execution all of the powers vested in the Government of the United States by this Constitution.
Now, Article III, Section 2 of the Constitution declares that,
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; ...
There is nothing in the Constitution to make clear, or even hint, that the laws of the United States shall include any laws of the nature of the common law of England, except Amendment VII, as before mentioned, in respect specifically to the rules of proceeding in the courts for suits at common law; but to the contrary, as Article VI and Article I, Section 8 make clear, the laws of the United States are to be the laws made by the Congress, and the Congress only, hence, statutes, or in other words, standing laws. Indeed, this point is confirmed by The Federalist, No. 80 in interpreting Article III, Section 2 of the Constitution (just quoted above), the extend of the federal judicial power. Said The Federalist:
"To judge with accuracy of the proper extent of the federal judicature it will be necessary to consider, in the first place, what are its proper objects.
It seems scarcely to admit of controversy that the judiciary authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2nd, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3rd to all those in which the United States are a party; ..."
So we see, the laws of the United States are to consist of those laws "passed in pursuance of their just and constitutional powers of legislation," alluding to Article I, Sections 1, 7, and 8 of the Constitution, which sections make clear that the "All legislative Powers herein granted shall be vested in a Congress of the United States" (Sec. 1); that bills "passed" by both Houses shall become law, when approved by the President, or "passed" by two thirds over his objections; and the power to make all laws which shall be necessary and proper for carrying into execution all of the powers vested in the Government of the United States by this Constitution, and which also, all laws shall be made in pursuance of this Constitution.
Finally, the question of the "common law of the United States directly arose in the Federal Constitutional Convention on September 15, at the finish of the business, when George Mason of Virginia presented his Objections to the Constitution in a speech, then published as an essay. He stated, in part:
"There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declaration of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several States."(5)
James Madison, in a letter to George Washington (Madison and Washington, of course, were also delegates to the Federal Convention), dated October 18, 1787, shortly after the convention had concluded, responded to, and commented on, Mason's essay of his Objections to the Constitution. Regarding to Mason's point of the common law, Madison stated in his letter:
"What can he [Mason] mean by saying that the Common law is not secured by the new Constitution, though it has been adopted by the State Constitutions? The Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States.(6) If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virginia drawn up by Col. Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code [the "common law"]. The "revisal of the laws" by a Committee of which Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they would have done more, they would have brought over from Great Britain a thousand heterogeneous antirepublican doctrines, and even the ecclesiastical hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution. This objection sure was not brought forward in the Convention, or it would have been placed in such a light that a repetition of it out of doors would scarcely have been hazarded. Were it allowed the weight which Col. Mason may suppose it deserves, it would remain to be decided whether it be candid to arraign the Convention for omissions which were never suggested to them or prudent to vindicate the dissent by reasons which either were not previously thought of, or must have been wilfully concealed."(7)
So, it is clear from both Mason and Madison that the Convention intended that there shall be no such law as the common law of the United States (unwritten laws as part of "the Laws of the United States," as distinguished from the laws, or the legal code, of the several States.
Therefore, the House of Representatives, sitting as the grand inquest of the Nation, the Senate, sitting in the trial of impeachments, and the Courts of the United States, including the Supreme Court, have not the power to make, or develop, any common law on crimes and impeachment by their indictments, impeachments, decisions and precedents.
There is, however, the problem of determining on the laws binding the Judges of the Courts of the United States as to the rules of proceeding and rules of evidence. The makers of the Constitution evidently intended that the Congress shall make all of the laws that are necessary, as well as shall be proper, for carrying into execution the judicial power vested in the Courts of the United States by Article III, Section 1 of the Constitution; and the laws which are plainly necessary for carrying into execution the judicial power are laws that prescribe the rules of proceeding in the courts, that is, the manner in which remedies for injuries received are perused and applied by suits in the courts of justice, including the law of evidence. (Here, we are not concerned with the rules of court, as to business hours, time limits for filing pleadings, forms of the paper in used in the filings with the court, and the like; but substantive rules, as when and when not there shall be allowed compulsory discovery on the oath of the parties, and what is legal evidence, the form of the oath taken be witnesses and jurors, whether or not there shall be a trial by jury.) The existing statute law of the Congress empowering the Supreme Court to make the "rules of procedure" and "rules of evidence" is unconstitutional, as Congress has not the constitutional right and power to transfer or give to the Supreme Court legislative power, the power to make laws of the utmost importance to the rights of individuals: the rules of proceedings and rules of evidence. See Part IV and VIII of the present Treatise.
The foregoing relates to the one exception of the principle of the Constitution barring a common law being part of the Laws of the United States. (Certainly, there is no except that a common law can be developed for the United States.) The exception arises on account of the first ten amendments to the Constitution, and this exception pertains to the rules of proceeding and law of evidence in the Courts of the United States, and more specifically, to the Seventh and Ninth Amendments. In Amendment VII,the common law is prescribed in prescribed in regards to the right of jury trial in suits at common law, to wit:
Amendment VII
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
Here, the amendment specifically prescribes that "the rules of common law" are binding law governing the manner of the re-examination of facts in any court of the United States, hence, the part of the supreme law of the land (Article VI), as the amendment is a part of the Constitution. The Ninth Amendment declares:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The rights retained by the people must include those rights of individuals commanded by the common law and statute law of England, as adopted for the common law of the several Colonies, then States. Those rights must, therefore, include the rights to have the Courts of the United States follow the rules of proceeding and leading maxims of the law of evidence which defined the judicial power as the People who ordained and established the Constitution certainly intended it to mean, that definition given in Blackstone's Commentaries on the Laws of England, except where superseded by proper laws made by the Congress; as the Congress is granted the power to make all laws which shall be necessary and proper for carrying into execution the judicial power; and the rules of proceeding and rules of evidence are certainly laws governing the judicial proceedings that are necessary for executing the judicial power. Such laws must be proper laws, laws which carrying into execution the judicial power as it was intended to mean (the power to determine the law arising upon the fact in issue in a suit, not a power to develop the law or to make the law): laws which maintain the intended distinction between cases in law and cases in equity: laws of evidence which maintain the leading maxims of legal evidence, that are associated with the certain intent of the grant of judicial power. (Refer to Parts V and VIII of the present Treatise.)
It is emphasized that the rights of the people are rights held in common, plainly; hence, no particular right enjoyed by a branch of the United States, as prerogative power or privileges. Indeed, Amendment Ten bars prerogative powers, discretion power to act for the "public good" where the positive laws are silent, as prerogative is defined by Blackstone (see Book I, Ch. 7).
In regard to the legal code of each of the States, such laws as are part of a common law, may be part of the law of a State, should the State's Constitution or State Statute expressly provide for it. Thus, the original Constitution of New York:
The First Constitution of New
York, 1777
Article XXXV
And this convention doth further, in the name and by the authority of the good people of this state, Ordain, Determine, and Declare, That such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, ... shall be and continue the law of this state, subject to such alterations and provisions as the legislature of this state shall, from time to time, make concerning the same. ... That all such parts of the said common law, and all such of the said statutes and acts aforesaid, or parts thereof, as may ... concern the allegiance heretofore yielded to, and the supremacy, sovereignty, government, or prerogatives claimed or exercised by, the King of Great Britain and his predecessors, over the colony of New york and its inhabitants, or are repugnant to this Constitution, be and they hereby are, abrogated and rejected. ..."
For the case of the Constitution of Massachusetts, however, the common law of England does not seem to have been adopted:
Massachusetts Constitution
Article X
Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. ... but no part of the property of any individual, can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this Commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. ..."
This article appears to require that only statute laws, that is, standing laws, shall be the law of the land for Massachusetts; though a statute could declare that certain parts of the common law of England shall be the part of the laws, perhaps, as Madison mentioned, and as is provided for in the original New York Constitution.
Thus, the existence of common law in each State is not barred by the Constitution of the United States, but is effectively recognized by the Constitution of the United States by the Ninth Amendment, as Mason wanted such a provision, in so far that the United States Government, Congress, the Executive, and the Courts of the United States, shall not infringe the rights of the individual as established by the common law in the several State before the establishment of the Constitution of the United States.
In conclusion, the idea of a "common law of the United States," or unwritten law and mere precedent, which prescribes or establishes certain crimes and misdemeanors is unfounded and wrong. All federal criminal laws must be prescribed by statutes passed by the Congress, and must be proper laws as well. However, a high crime and misdemeanor may be a common law offence of a state where such offence may be committed, if such common law offences are still existing in the legal code of any State.
There is a fact of the Constitution that needs to be analyzed in regards to the notion of a common law of the United States. Article II, Section 4 of the Constitution specifies bribery as a species of high crimes and misdemeanors that are impeachable, but without defining bribery. Certainly, the people did not intend to permit the Congress to define bribery in any way they please, but to hold any civil officer of the United States to account should he commit the offence of bribery that was defined by the common law, as Blackstone's Commentaries defined it:
"Bribery is the next species of offence against public justice; which is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in his office." (IV, Ch. 10, p. 139)
Then, does this fact of Article II, Section 4, the specification of bribery , mean that all of the crimes and misdemeanors of the common law of England were intended to form put of the Laws of the United States? Clearly, no, since that would gives the United States jurisdiction over the general conduct of persons in the States, which would contravene the nature of the federal government under the Constitution and the bounds of its granted powers, where the powers of the United States are limited to certain, specified powers, plainly. To answer this question, we ought to rely on the principle of honestly. The Constitution does not expressly provide for the adoption of the common law of England; whereas, in his Commentaries on the Laws of England, Sir William Blackstone, faced the question of just what are the laws of England, and defined them positively: That there is the common law, which he explained precisely how it is to be determined, including the prerogatives of the king, and the statute law. So, if the Constitution were intended to include the common law of England as part of the Laws of the United States, with any provision for altering that law, the Constitution would have so expressed it. Therefore, in view of the power granted to the Congress to make all laws which shall be necessary as well as proper, it is reasonable to conclude that the people intended, in regard to the mandate on bribery, that Congress make as part of the criminal law a statute make the offence of bribery as that which the people certainly intended as the term was understood to mean: judges of the courts of the United States taking undue rewards for influencing their behaviour in the courts of justice. As for other officers of the United States taking bribes, Congress would make such misbehaviour offences under the denomination of other high crimes and misdemeanors.
A common
Misrepresentation of The Federalist
as to what constitutes
a high Crime and Misdemeanor
Citations of No. 65 of The Federalist about "high crimes and misdemeanors" being denominated "political" crimes have been asserted in the press and in television discussions, in order to give the public the impression that the House of Representatives and the Senate can impeach and convict on whatever misbehavior which they perceive and judge. The point of the whole essay No. 65 is that the Senate, not the Supreme Court, ought to be the court for trying of all impeachments. However, this point is not what has been pushed about this essay, but rather, the following passage from that essay:
"A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may be peculiar propriety to be denominated political, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused."
This passage of The Federalist has been interpreted generally as indicating that the subject of impeachment is not restricted to statute-prescribed crimes, but whatever offensive behavior the House of Representatives and the Senate thinks is a "political" crime, a vague indefinite, therefore, discretionary, definition.
This idea, or interpretation of The Federalist, however, is wrong. For one thing, The Federalist is not the Constitution, but an interpretation of the Constitution; and, therefore, we ought not take an essay of The Federalist as a document equivalent to the Constitution and then subject IT to interpretation, as if a secondary interpretation (an interpretation of an interpretation) can settle the meaning of the Constitution. Rather, we ought to investigate what The Federalist must have alluded to in its interpretation of the impeachment provisions of the Constitution. And this can be determined by consulting, again, Blackstone's Commentaries on the Laws of England. When comparing Blackstone's chapter on "Offences against Public Justice" (Book IV, chapter 10) with The Federalist, one finds that essay No. 65 of The Federalist was definitely alluding "chiefly" to the those "Offense against the Public Justice," which affect the "common-wealth, or public polity," where officers of the government misuse their offices, such as the offenses of: (1) embezzling, (2) an officer inducing or exciting a delinquent to accuse and turn evidence against another, (3) perjury, (4) bribery, (5) oppressive partiality in criminal prosecutions and trials, among seventeen other species of crimes that are enumerated in that chapter.
The word "polity" as used by Blackstone in the introduction of his chapter 10 on "Of Offences against Public Justice," is undoubtedly the source of the word "political" used in The Federalist, No. 65. That chapter follows the chapter on the class of offences known as "Misprisions and Contempt, affecting the King and Government," as disobeying the king's lawful commands, or writs issuing out of his courts of justice. In the introduction of the follow-on chapter, Chapter 10, "Offences against Public Justice," Blackstone states:
"The order of our distribution will next lead us to take into consideration such crimes and misdemeanors as more especially affect the common-wealth, or public polity of the kingdom: which however, as well as those which are peculiarly pointed against the lives and security of private subjects, are also offences against the king, as the pater-familias of the nation; to whom it appertains by his regal office to protect the community, and each individual therein, from every degree of injurious violence, by executing those laws, which the people themselves in conjunction with him have enacted; ...
The crimes and misdemeanors, that more especially affect the common-wealth, may be divided into five species; viz. offences against public justice, against the public peace, against public trade, against the public health, and against the public police or oeconomy; of each of which we will take a cursory view in their order:
First then, of offences against public justice: ...'
The Federalist essay No. 65 does not set out to define what constitutes impeachable offences, but to argue that the Senate should be the trial of impeachment of officers, not the Supreme Court. The writer of The Federalist only asserted his advocate view why the Senate ought to try those offenses committed by "public men," or officers of the Government that are "abuses or violations of public trust," alluding therefore, to bribery, embezzling, inducing persons to accuse and turn evidence against another, oppressive partiality, and extortion, and the like. The Constitution does not say that the President and other officers shall be removed from office on impeachment for and conviction of political offenses, but "high crimes and misdemeanors."
Also, No. 65 of The Federalist makes it all the more clear that the officers of the United States, including the President, can not be indicted by grand juries, while holding office, but can only be prosecuted for crimes by the mode of impeachment by the House of Representatives.
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1. * The Starr Report, p. 404-405.
2. ** The Starr Report, page 402.
3. * The Records of the Federal Convention of 1787, M. Farrand, Volume 2, page 550-551, September 8, 1787). Incidentally, the proposition, read "of other high crimes and misdemeanors against the state," according to the Journal of the Convention (Id., p. 545). However, the words "against the state" were replaced with "against the United States" (Id., 551), by "unanimous" vote of amendment. Later, of course, the expression "against the United States" was expunged. So, the expression "other high crimes and misdemeanors" does not mean such a vague notion as "crimes against the State" as distinguished from crimes against a person; for Blackstone makes it clear that a crime is a "public wrong," where the rights of all the members of the civil society are infringed by the wrongful act, as such crimes as murder not only affect the individual killed, but because "by their example and evil tendency they threaten and endanger the subversion of all civil society." (IV, Ch. 14, p. 176; and generally Book IV)
4. The question of the existence of common law for the United States is treated in a special section below. The common law is a law of custom that exist because the law or custom always has been from time immemorial, where the presumption is that the law had been prescribed in the ancient time, but the document had gotten lost. Hence, the judicial opinions and treatises of the learned sages are consulted for the evidence of that common law. But for the United States, the creation of the federal Government occurred with the establishment of the Constitution, and so there was no federal law prior to that establishment. And since the Constitution vest the legislative power in the Congress only (Article I, Section 1), it results that only the Congress can make the laws, hence the federal laws can only be laws made (bills passed) by the Congress. The Constitution itself is also federal law. Like any law, the meaning of a law has to be determined in specific cases; but such determinations cannot become laws of the land; but rather, the meaning of the Constitution always has to be determined correctly, by means of careful study and investigation.
5. * The Records of the Federal Convention of 1787, M. Farrand, Yale University Press, Vol. 2, page 637. He also said, among other things:
"The Judiciary of the United States [by the finished, proposed Constitution] is so constructed and extended, as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious,intricate and expensive, and justice as unattainable,by a great part of the community, as in England, and enabling the rich to oppress and ruin the poor." (Id., 638)
Mason sought a second convention to consider the sentiments of the people on the proposed Constitution, and said on September 15 in the Convention that he would sign the Constitution with such a provision for a follow-on convention. (Id., 632)
6. ** The Constitution of the State of New York specifically declares that the common law of England shall be the law of the State, except as revised by the legislature of New York, and except the part of that common law as to the allegiance and prerogatives of the King of Great England.
7. * The Records of the Federal Convention, M. Farrand, Vol. 3, page 130: Appendix A, item CXXXIV, Letter James Madison to George Washington, N. York Octr. 18, 1787.